Pethybridge v R [2020] NSWCCA 247

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Pethybridge v R [2020] NSWCCA 247 Hearing dates: 3 July 2020 Date of orders: 2 October 2020 Decision date: 02 October 2020 Before: Payne JA at [1]; Fagan J at [117]; Cavanagh J at [118] Decision: (1) Leave to appeal (including leave to appeal under rule 4) granted on all grounds; (2) Appeal allowed on grounds 1 and 2 of appeal against conviction; (3) Appeal dismissed on ground 3 of appeal against conviction; (4) Quash the conviction dated 20 June 2018; (5) Aggregate sentence imposed on 21 September 2018 quashed and in lieu thereof the following sentence imposed on counts 1-6 on the indictment presented on the second trial: (a) Aggregate sentence of 4 years imprisonment imposed to commence on 2 August 2018; (b) Aggregate non-parole period of 2 years and 9 months imposed; (c) The applicant will first be eligible for parole on 1 May 2021; (d) The following indicative sentences are identified: (i) Count 1: 14 months; (ii) Count 3: 14 months; (iii) Count 4: 22 months; (iv) Count 5: 12 months; (v) Count 6: 13 months. (6) Matters the subject of the indictment presented in the first trial remitted to the arraignment list in the District Court on 9 October 2020. Catchwords: CRIMINAL PROCEDURE – lies – directions to jury – consciousness of guilt – where Crown conducted a case in relation to one alleged lie told in consciousness of guilt – whether trial judge erred in directing jury about three alleged lies told in consciousness of guilt EVIDENCE – character evidence – good character – where applicant sought to lead evidence of lack of prior convictions – where trial judge refused to allow applicant to adduce evidence of prior good character – whether trial judge erred EVIDENCE – tendency evidence – coincidence evidence – whether direction sought by Crown – whether trial judge permitted to give direction Legislation Cited: Crimes Act 1900 (NSW), ss 61E, 65, 66C, 76, 413 Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Appeal Rules, r 4 Criminal Procedure Act 1986 (NSW), ss 141, 142 Evidence Act 1995 (NSW), ss 55, 110, 135 Cases Cited: Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15 Clegg v R [2017] NSWCCA 125 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hughes v R [2018] NSWCCA 2 JV v R [2017] NSWCCA 49 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v D (1996) 86 A Crim R 41 R v Hamilton (1993) 68 A Crim R 298 R v Meher [2004] NSWCCA 355 Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25 TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Principal judgment Parties: Raymond Maurice Pethybridge (Applicant) Crown (Respondent) Representation: Counsel: C Smith SC with S Howell (Applicant) B Hatfield (Respondent)